Friday, May 20, 2011

Sorry, but the anti-war left can't have it both ways

In the deep darkness of a November night, a 50-man raiding party clambered down from a brace of submarines and began paddling inflatable boats towards the shore. The year was 1941 and these elite British commandoes were on a mission of targeted killing. They were tasked with the extra-judicial execution of the man who commanded the German Afrika Korps -- General Erwin Rommel.

The hit on Rommel failed only because the famed ''Desert Fox'' was absent from his Libyan HQ at the time.

A similar operation launched the following year was much more successful. The British Special Operations Executive parachuted a team of agents into Czechoslovakia where they took out SS Obergruppenfuhrer Reinhard Heydrich in May 1942.

The United States then got into the assassination business. The Americans used data from a broken Japanese naval code to organise an aerial ambush that killed Admiral Yamamoto -- the architect of the Pearl Harbor attack. These days the NATO-led Coalition -- of which Australia is a part -- routinely fires Hellfire missiles from Predator drones to knock off Taliban commanders in Afghanistan and Pakistan.

So you'll excuse me if I abstain from the chorus of outrage that erupted over the fact that Osama bin Laden may have only been reaching for a weapon at the precise moment he was killed. There's more than ample precedent to justify the deliberate targeting of senior enemy officers in wartime -- armed or not.

It's beyond all reasonable doubt that al-Qaeda and its allies are waging war against the United States. In his 1998 declaration of ''jihad against the Jews and Crusaders'' bin Laden made no bones about his belligerent intent: ''in compliance with Allah's order, we issue the following fatwa [edict] to all Muslims: The ruling to kill the Americans and their allies -- civilians and military -- is an individual duty for every Muslim who can do it in any country in which it is possible to do it.''

Of course, those words have proven to be no mere rhetorical flourish. Over the past 15 years, jihadi terrorist outrages have claimed innocent victims by their scores of thousands.

Just a fortnight ago another 16 people -- mostly tourists -- were slaughtered by al Qaeda in the bombing of a Moroccan cafe.

Yet the international human rights movement appears incapable of comprehending that the struggle against jihadi Islam is a full-fledged shooting war.

The most vocal critics of the raid on bin Laden are the same people who cry to high heaven when America attacks jihadi terrorist targets through more conventional military means. If the US conducts air strikes against a Taliban command centre, the naysayers scream about disproportionality and war crimes. Yet they also pillory the White House with complaints about extra-judicial killing when the world's pre-eminent terrorist is killed in a pinpoint operation that generates almost zero civilian casualties.

Sorry, but the anti-war Left can't have it both ways.

Progressives shouldn't be allowed to get away with their purblind insistence that jihadi terrorism should be addressed as a police problem rather than an issue of national security.

In the wake of the Navy SEAL raid on bin-Laden's hideout, examples of this sort of mushy thinking are legion. Celebrity international lawyer Geoffrey Robertson described the death of the al Qaeda leader as a ''perversion of natural justice'' The UN chimed in, declaring: ''the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment.''

Back in 2005 I warned that any attempt to apply the rules of the barrister to the realm of the battlefield would be absolute folly. And as I pointed out, nowhere was this danger better illustrated than on the front-page of The Washington Post.

Just a fortnight after 9/11, the Postreported that Bill Clinton had spurned a 1996 offer by the Sudanese government to deliver bin Laden into American hands. The article quoted former Clinton aide Sandy Berger, who said: ''The FBI did not believe we had enough evidence to indict bin Laden at that time, and therefore opposed bringing him to the United States''.

That is the self-righteous madness of politically correct masochism. Imagine instead what would have happened had Clinton called in a Navy SEAL team rather than a gaggle of Justice Department lawyers. A couple of skyscrapers in lower Manhattan would likely still be standing and thousands of innocent lives would likely have been saved.

Habitual critics of American foreign policy also like to bang on about their fervent faith in international law as the ultimate arbiter of global affairs. But the United States has never accepted the proposition that its national sovereignty may be superseded by foreign authority.

Under US constitutional law, a ratified international treaty shares equality of status with normal federal statute. And like any other law on the books, a treaty obligation can thus be modified or repealed through subsequent action by Congress.

There is nothing controversial about this principle in US jurisprudence. Case in point -- the 1957 ruling in Reid v Covert that declared: ''this Court has regularly and uniformly recognised the supremacy of the Constitution over a treaty''.

The Supreme Court judgement in Whitney v Robertson laid out the so-called ''last in time'' rule with crystal clarity: ''By the Constitution of the United States, a treaty and a statute are placed on the same footing, and if the two are inconsistent, the one last in date will control''.

This well-established US constitutional doctrine means that Washington's adherence to international law is entirely voluntary. After all, if the US Government can change its mind at will about a previously ratified treaty, by definition international law cannot be not binding upon it.

So the furious debate as to whether the 2003 invasion of Iraq was sanctioned by the UN is nothing more than irrelevant blather. The United States Congress authorised American military action against Saddam Hussein through the Iraq War Resolution of October 2002. Thus the overthrow of Saddam Hussein was entirely legal under US law. And as we've seen, the domestic United States law trumps international law every time.

The same holds true for the raid on bin Laden. Precisely one week after the 9/11 attacks, Congress passed what became US Public Law 107-40, the Authorisation for the Use of Military Force (AUMF).The AUMF empowered the President of the United States to ''use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorised, committed, or aided the terrorist attacks that occurred on September 11, 2001''.

The passage by Congress of the AUMF negated any contrary commitments the US previously incurred under international treaties, including the UN Charter and the Universal Declaration of Human Rights. Osama bin Laden became just another enemy combatant commander who was to be treated according the rough rules of war.

The doctrine of US Constitutional superiority over international law has an added dimension. The authority to sit in judgement over the US Government is solely restricted to constitutional officers of the United States. No one else -- not the UN, nor human rights lawyers with an inflated sense of their own importance -- may dictate to Washington what is or is not legitimate.

So with all due respect to Geoffrey Robertson all the kvetching about the manner of Osama bin Laden's death is much ado about nothing.

The bottom line is simple: the killing of Osama bin Laden was an entirely legitimate act of war that has made the world a better place.

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RICHARD J WOOD

Today, those who subscribe to the principles of individual liberty, limited government, the free market, and the rule of law call themselves by a variety of terms, including conservative, libertarian, classical liberal, and liberal.

I see problems with all of those terms.

"Conservative" smacks of an unwillingness to change, of a desire to preserve the status quo.

Only in Australia do people seem to refer to free-market capitalism — the most progressive, dynamic, and ever-changing system the world has ever known — as conservative.

Additionally, many contemporary Australian conservatives favour state intervention in some areas, most notably in trade and into our private lives.

"Classical liberal" is a bit closer to the mark, but the word "classical" connotes a backward-looking philosophy.

Finally, "liberal" may well be the perfect word in most of the world — the liberals in societies from China to Iran to South Africa to Argentina are supporters of human rights and free markets — but its meaning has clearly been corrupted by contemporary Australian liberals.

The philosophy that animates my work has increasingly come to be called "libertarianism" or "market liberalism."

It combines an appreciation for entrepreneurship, the market process, and lower taxes with strict respect for civil liberties and scepticism about the benefits of both the welfare state and foreign military adventurism.

The market-liberal vision brings the wisdom of the Australian Founders to bear on the problems of today.

As did the Founders, it looks to the future with optimism and excitement, eager to discover what great things women and men will do in the coming century.

Market liberals appreciate the complexity of a great society, they recognise that socialism and government planning are just too clumsy for the modern world.

It is — or used to be — the conventional wisdom that a more complex society needs more government, but the truth is just the opposite.

The simpler the society, the less damage government planning does.

Planning is cumbersome in an agricultural society, costly in an industrial economy, and impossible in the information age.

Today collectivism and planning are outmoded and backward, a drag on social progress.

Market liberals have a cosmopolitan, inclusive vision for society.

We reject the bashing of gays, Japan, rich people, and immigrants that contemporary liberals and conservatives seem to think addresses society's problems.

We applaud the liberation of blacks and women from the statist restrictions that for so long kept them out of the economic mainstream.

Our greatest challenge today is to extend the promise of political freedom and economic opportunity to those who are still denied it, in our own country and around the world.